Trademark Trials and Tribulations

A trademark is defined as “A name, symbol, or other device identifying a product, officially registered and legally restricted to the use of the owner or manufacturer.” Trademarks are a good thing. They allow businesses, manufacturers, and others to protect the names of their goods and services, without worrying about other people using the name illegitimately. Many companies trademark their business names, as well as the names of the products they manufacture.

All the PPC engines have policies concerning the use of trademarks in advertisements. There’s a good summary of them here. These policies, as far as I can tell, are written to prevent deceptive use of trademarks: for example, to keep out ads like “Looking for Pontiac? Honda’s Better! Find Out Why at Honda.com” or, worse yet, “Pontiac – Great Automobiles Here – Honda.com”. Clearly, ads of this nature are a deliberate attempt to mislead the consumer and draw clicks away from competitors. I think most people would agree this should be prohibited.

But what about authorized resellers? Distributors? Legitimate businesses selling trademarked products?

Well, if you want to advertise on Google Adwords, and the trademark owner has filed a trademark restriction, you’re out of luck. In the US, you can have ads on trademarked keywords, but you can’t use the keywords in your ad.

So, for illustration purposes only, let’s say you’re a Honda dealer, and you want to advertise the Honda Odyssey on Google. Let’s say Honda has filed a trademark restriction on “Honda Odyssey.” Guess what, Joe’s Honda? You’re screwed. You’re relegated to ad copy like, “Reliable minivan from a top manufacturer, see it here.” How lame is that? How many people are going to click on that ad?

Not many. I can tell you from experience. We’ve got almost 50 magazines whose names we can’t use in our Google ads, due to trademark restrictions filed by the publishers. Click-through rates on the ads we’ve tried, without the name of the magazine in them, are pathetic. And of course, what’s one of the biggest factors in the Adwords Quality Score? CTR. So it’s a double whammy – your ads look and sound stupid, and your Quality Score gets hammered. Not a good combination.

What I don’t understand is why this is such a big deal in the search space. I mean, can you imagine JCPenney running a newspaper ad for Levi’s or Carter’s or Samsonite or any of the hundreds of other brands they carry in their stores – without using those names in the ad?? How silly would that look? And how many people would be compelled to shop for “great brand name jeans” or “cute brand baby clothes” or “super durable luggage” after seeing such an ad? Where would all the grocery store circulars be without using brand names and logos? What about TV ads for just about anything? What about magazine ads??

There are already laws on the books which prevent bait-and-switch and deceptive advertising. As I said earlier, everyone agrees this is a bad thing. Why not just enforce these laws? Why hamstring legitimate advertisers with this silly trademark policy?

Lawsuits and deep pockets, that’s why. Google has been sued over this, and therein lies the difference between search engines and traditional media. Traditional media have huge sales staffs who oversee the ads placed there. I sold radio and newspaper advertising for over 7 years. It was at least partly my responsibility to make sure the ads I sold were accurate and the businesses actually sold the products they were advertising. Google’s self-serve Adwords platform makes it impossible for them to oversee every ad that runs there. So, it’s probably easier (and definitely cheaper) for them to just enact this policy rather than subject themselves to lawsuits every day.

So really, the bottom line lies in our legal system and litigious society. Instead of invoking FTC guidelines and going after the advertisers themselves, people go after the Google Googlianaires. Sad.

I don’t know what the right answer is, but I know that legit advertisers like us are getting squeezed by this short-sighted policy – and the short-sightedness of the trademark holders who fear what they do not understand.

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